Peninsula Regional Medical Center v. AdkinsPeninsula Regional Medical Center v. Adkins
John B. Stolarz (The Stolarz Law Firm, Baltimore, MD), on brief, for respondent.
Argued before BARBERA, C.J., BATTAGLIA,* GREENE, ADKINS, McDONALD, WATTS, GLENN T. HARRELL, JR. (Retired, Specially Assigned), JJ.
ADKINS, J.
Since its enactment in 1965, the Maryland Fair Employment Practices Act (“FEPA“), Maryland Code (1984, 2014 Repl. Vol.),
Tracey L. Adkins1 (“Adkins“) began her career at Peninsula Regional Medical Center (“PRMC“), a hospital located in Salisbury, Maryland, around March 2005. She was first employed as a storekeeper in the Materials Management Department, which is, in part, responsible for inventorying and stocking medical supplies and equipment. In this role, Adkins delivered supplies to various floors of the hospital, organized supplies in the supply room, and checked expiration dates of materials. Six months later, she was transferred to Inventory Control, more commonly known as the “Cath Lab,” as an inventory control assistant. This position was also in the Materials Management Department. Adkins held this position until September 2010, when the position was “cut.” She then transferred back to the storekeeper position, which she held until her termination on February 25, 2012—the event generating the underlying lawsuit.2
In April 2011, Adkins went to PRMC‘s emergency room after experiencing pain in her groin area and took a few days off from work. When Adkins returned to work, she continued to experience pain but managed to complete her tasks. Adkins was ultimately diagnosed with a tear in the joint of her left hip as well as a deformation in her hip socket. She was scheduled to have surgery in August 2011 and notified her supervisors. She also filled out paperwork to obtain leave under the Family and Medical Leave Act (“FMLA“).3 The FMLA paperwork indicated that her leave would begin on
Following the surgery, Adkins‘s pain intensified and her doctors advised her that the time for recovery could range from six months to a year. On October 3, 2011, while still out on FMLA leave, Adkins met with James Bunk (“Bunk“), a supervisor who was the supply chain operations manager of the Materials Management Department. She informed him that she was meeting her surgeon on October 10 for a follow-up appointment and that she hoped to learn, at that time, when she could return to work. After the October 10 appointment, Adkins received a letter from her physician advising her that she would be unable to return to work until November 7, 2011. Adkins then delivered this documentation to Bunk and PRMC‘s Employee Health Office.
On November 7, 2011, Adkins returned to work as scheduled and met with a nurse in the Employee Health Office. She told the nurse that she was still in pain and would be unable to fulfill her job responsibilities on that day. She explained that she experienced increased pain when bending, lifting, and squatting, and that she would not be able to stand for long periods of time. An “Employee Charting Note” for
Adkins returned to her doctor on November 10 and received a medical report indicating she could return to work under “light duty.” That same day, she brought the form to PRMC‘s Employee Health Office. The form stated that she was restricted to “[s]edentary [w]ork: [l]ifting 10 pounds maximum and occasionally lifting and/or carrying small articles and occasional walking or standing.” The Employee Health Office told Adkins “that her unit can not [sic] accommodate her restrictions.” After her surgery and before her termination, Adkins applied for several different positions, including Patient Services Rep—Medical Group and Core Technician.5 She also emailed Scott Phillips, director of the Materials Management Department, and Laura McIntyre, Operations Room Materials Manager, asking to be considered for an inventory control coordinator position, writing:
I was informed that there is now an open position for Inventory Control [Coordinator] in the Cath Lab. With my prior position in the Cath Lab as the [inventory control] assistant I was wondering if I would be considered for the position. I am still released under Doctors orders under sedentary work but [from] prior knowledge of the job I know that the job is mostly sedentary and I do have the experience and know how for the position[.]
She was not hired for any of these positions.
On or around November 17—the day Adkins‘s 12-week FMLA leave was set to expire—PRMC granted her an additional 14 weeks of leave until February 2012. PRMC encouraged her to apply to open positions, but did not identify any specific positions. During this time, Adkins learned that her
On February 25, 2012, at the end of the 14-week extended leave, Adkins was terminated. Adkins applied to four more positions after her termination, but was not hired for any of these positions.
In February 2013, Adkins filed a three-count complaint against PRMC in the Circuit Court for Wicomico County under FEPA, alleging intentional disability discrimination based on actual disability, intentional disability discrimination based on being regarded as having a disability, and failure to accommodate. PRMC thereafter filed a motion for summary judgment.7 In May 2014, the Circuit Court issued an order and opinion granting summary judgment in favor of PRMC. Adkins appealed the Circuit Court‘s ruling as to disability discrimination based on actual disability and failure to accommodate, but did not challenge the trial court‘s decision on disability discrimination based on being regarded as having a disability.
The Court of Special Appeals, however, reversed the Circuit Court‘s grant of summary judgment on Adkins‘s disability discrimination based on actual disability claim and her reasonable accommodation claim. The intermediate appellate court ruled that the evidence contained in the record reflected genuine disputes of material fact as to these claims. PRMC
- (1) Does the definition of “qualified individual with a disability” include employees who could perform the essential functions of a reassignment position, with or without a reasonable accommodation, even if they cannot perform the essential functions of their current position?
- (2) Did the Court of Special Appeals err in reversing the Circuit Court‘s grant of summary judgment in favor of PRMC?
Because we answer yes as to question one and no as to question two, we shall affirm the judgment of the Court of Special Appeals and remand for further proceedings. Additional facts shall be included as necessitated by our discussion of the issues.
STANDARD OF REVIEW
A circuit court may grant a motion for summary judgment if there is no dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
DISCUSSION
There are relatively few appellate decisions interpreting Maryland‘s FEPA. On the other hand, the federal courts have provided “substantial guidance” on the interpretation and application of federal disability legislation. Barbara T. Lindemann et al., Employment Discrimination Law 13-7 (5th ed. 2012). Because FEPA is modeled after federal law, see Haas v. Lockheed Martin Corp., 396 Md. 469, 503-04, 914 A.2d 735 (2007) (Battaglia, J., dissenting), a brief overview of federal disability law is necessary.
The intermediate appellate court‘s outline of federal law is instructive and merits quoting at length. The court wrote:
Title VII of the Civil Rights Act of 1964 established a broad prohibition of workplace discrimination on the grounds of race, color, religion, sex, and national origin. Pub.L. No. 88-352, 78 Stat. 253 (1964) (codified as amended at
42 U.S.C. §§ 2000e et seq. ). Although Title VII did not encompass disability within its scope, Congress thereafter extended Title VII‘s ban of discriminatory workplace practices to include disability with its enactment of the Rehabilitation Act of 1973. Pub.L. No. 93-112, 87 Stat. 355 (1973) (codified as amended at29 U.S.C. § 790 et seq. ). This Act protects federal executive branch employees, see29 U.S.C. § 791 , and employees of federal contractors and subcontractors with contracts exceeding $10,000, see29 U.S.C. § 793 . It also prohibits discrimination in programs or activities that receive federal financial assistance or are conducted by an executive federal agency or the U.S. Postal Service. See29 U.S.C. § 794 .
Adkins v. Peninsula Reg‘l Med. Ctr., 224 Md.App. 115, 130-31, 119 A.3d 146 (2015).
The Rehabilitation Act of 1973, Pub.L. No. 93-112, 87 Stat. 355 (1973) (codified as amended at
Around the time Congress passed the Rehabilitation Act, the General Assembly amended FEPA‘s ban on discrimination to include “physically or mentally handicapped persons.” Act of July 1, 1974, ch. 601, § 19(a)(1), 1974 Md. Laws 2029, 2030.9 Under FEPA, it is unlawful for a covered employer10 to “fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to the individual‘s compensation, terms, conditions, or privileges of employment” based on his or her “disability [that is] unrelated in nature and extent so as to reasonably preclude the performance of the employment.”
FEPA also prohibits an employer from failing or refusing “to make a reasonable accommodation for the known disability of an otherwise qualified employee.”
A covered entity (1) [s]hall make a reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability; (2) [i]s not required to provide an accommodation, if it demonstrates that the accommodation would impose undue hardship on the operation of its business or program; and (3) [m]ay not deny an employment opportunity to a qualified individual with a disability, if the basis for the denial is the need to accommodate the individual‘s physical or mental limitations, and this accommodation, if attempted, would be reasonable.
In this case, it is undisputed that Adkins was unable to perform the essential functions of the storekeeper position. The principal issue here rather is whether the intermediate appellate court was correct in holding that one who cannot perform the essential functions of his or her current job can still be considered a “qualified individual with a disability” entitled to a reasonable accommodation. Another key dispute is the concomitant issue of whether an employer has an obligation to conduct an individualized assessment of an employee who cannot perform the essential functions of his or her position. Because PRMC‘s appeal challenges the heart of Adkins‘s failure to accommodate claim under
Failure to Accommodate
Although the statutory duty to accommodate rests on the employer, the burden of proving that an employer could not have reasonably accommodated a disabled employee does not arise until the employee presents his or her prima facie case. Gaither v. Anne Arundel Cnty., 94 Md.App. 569, 583, 618 A.2d 244 (1993). To establish a prima facie case for a failure to accommodate claim, an employee must show: (1) that he or she was an individual with a disability; (2) that the employer had notice of his or her disability; (3) that with reasonable accommodation, he or she could perform the essential functions of the position (in other words, that he or she was a “qualified individual with a disability“); and (4) that the employer failed to make such accommodations. See id.; Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 579 (4th Cir. 2015) (setting forth the elements an employee must establish as part of his or her prima facie case for failure to accommodate under the Americans with Disabilities Act). A failure to accommodate claim does not, however, require any showing of discriminatory intent. See Lenker v. Methodist Hosp., 210 F.3d 792, 799 (7th Cir. 2000) (“[I]f the plaintiff demonstrated that the employer should have reasonably accommodated the plaintiff‘s disability and did not, the employer has discriminated under the ADA and is liable.“); Scalera v. Electrograph Sys., Inc., 848 F.Supp.2d 352, 362 (E.D.N.Y. 2012) (“[T]here is no burden on Plaintiff to show that her disability played any motivating role in Electrograph‘s failure to provide the requested accommodation.“).
PRMC does not contest the Circuit Court‘s conclusion that Adkins‘s hip injury constitutes a disability within the meaning of FEPA. Accordingly, we begin our analysis as to whether summary judgement was appropriate on Adkins‘s failure to accommodate claim at the second element required as part of an employee‘s prima facie case.
To receive an accommodation, an employee must “communicate[] to his employer his disability and his desire for an accommodation for that disability.” Wilson v. Dollar Gen. Corp., 717 F.3d 337, 346–47 (4th Cir. 2013). This requirement exists because an employer “cannot be expected to accommodate disabilities of which it is unaware.” Pollard v. Balt. Cnty. Bd. of Educ., 65 F.Supp.3d 449, 456 (D. Md. 2014). The burden on an employee to provide notice of a disability is “‘not a great one.‘” Rock v. McHugh, 819 F.Supp.2d 456, 473 (D. Md. 2011) (quoting E.E.O.C. v. Fed. Express Corp., 513 F.3d 360, 369 n. 5 (4th Cir. 2008)). Indeed, adequate notice does not require the use of the phrase “reasonable accommodation,” explicit reference to a statute, or the invocation of magic words. See Pollard, 65 F.Supp.3d at 456.12 Additionally, a request for an accommodation need not be in writing. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999). The key consideration in determining whether an employee has satisfied the second element of his or her prima facie case is whether the employee “provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation.” Id. (according little weight to “formalisms about the manner of the request“).
Here, while out on FMLA leave and after her surgery, Adkins met with her supervisor, James Bunk, and updated him about a follow-up appointment with her doctor. After this follow-up appointment, Adkins received a note from her surgeon stating that she would be unable to return to work until November 7, 2011 and delivered this documentation to Bunk and the Employee Health Office. After returning from her FMLA leave on November 7, Adkins met with a nurse in the Employee Health Office. The nurse quoted Adkins as saying,
Additionally, a reasonable jury could conclude that Adkins communicated to PRMC a “desire for an accommodation,” Wilson, 717 F.3d at 346-47, based on her submission of a medical report from her physician to the Employee Health Office.13 This report indicated that she could return to work under “light duty,” and could perform “[s]edentary [w]ork: [l]ifting 10 pounds maximum and occasionally lifting and/or carrying small articles and occasional walking or standing.” The submission of this medical report, along with her telling the Employee Health Office “[w]hat am I supposed to do[,] I have to work,” could lead a reasonable jury to find that PRMC had notice of Adkins‘s need for an accommodation because of her hip injury. Cf. Miller v. Ill. Dep‘t of Corr., 107 F.3d 483, 486-87 (7th Cir. 1997) (“Even if an employee who . . . becomes disabled while employed just says to the employer, ‘I want to keep working for you—do you have any suggestions?’ the employer has a duty under the [ADA] to ascertain whether he has some job that the employee might be able to fill.“) (citations omitted).
Qualified Individual with a Disability and the Individualized Assessment
The “qualified individual with a disability” element of an employee‘s prima facie case is the core issue in this case. The parties do not dispute that an employee, in order to establish that an employer failed to provide a reasonable accommodation in violation of
The Court of Special Appeals was correct to “ignore” this statement from the Fourth Circuit because it is a mistaken interpretation of the law. See Bratten v. SSI Servs., Inc., 185 F.3d 625, 633 (6th Cir.1999) (”Myers has not been well-received by other circuits“). The U.S. Court of Appeals for the Sixth Circuit explained the flawed reasoning of the Fourth Circuit:
The infirmity of Myers was that it relied on case law interpreting the Rehabilitation Act before the statute was amended in 1992. See Myers, 50 F.3d at 284 (citing Guillot v. Garrett, 970 F.2d 1320, 1326 (4th Cir.1992)). Prior to 1992, the Rehabilitation Act did not include re-assignment to a vacant position as a reasonable accommodation. See Gile v. United Airlines, Inc., 95 F.3d 492, 497 (7th Cir.1996). After the ADA was enacted, Congress amended the Rehabilitation Act to parallel the standards for employment discrimination under the ADA. Id.; see also
29 U.S.C. § 794(d) . Of course, the ADA explicitly lists “reassignment to a vacant position” as a possible reasonable accommodation mandated by the statute.42 U.S.C. § 12111(9)(B) .
Id. Nearly every federal circuit court has silently or explicitly rejected Myers and concluded that the definition of “qualified individual with a disability” includes employees who could perform the essential functions of a reassignment position, with or without a reasonable accommodation, even if they cannot perform the essential functions of their current position. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1161-62 (10th Cir.1999) (en banc) (collecting cases); see also Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1018-19 (8th Cir.2000) (noting that ”Myers has been sharply criticized“). Notably, even the Fourth Circuit has disavowed MyersWilliams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 350 n. 4 (4th Cir.1996) (rejecting district court‘s suggestion that reassignment to vacant position can never be reasonable accommodation and noting that such a conclusion would be “contrary to congressional direction“); see also Bratten, 185 F.3d at 634 (“Additionally, we note the Fourth Circuit itself has since acknowledged its mistake, and professed that the rule set forth in Myers, upon which the district court relied, was ‘contrary to congressional direction.’ “) (citation omitted).
PRMC concedes that the ADA and FEPA definitions of “qualified individual with a disability” are “substantially similar.” Caire v. Conifer Value Based Care, LLC, 982 F.Supp.2d 582, 599 (D.Md.2013) (“As to Maryland law claims alleging violations of State Government Article § 20-601 et seq., this Court has recognized that the definitions of ‘qualified individual with a disability’ under the ADA and the
PRMC criticizes the intermediate appellate court‘s decision in this case for permitting Adkins to use reassignment as “a means to establish [that] she is a qualified individual with a disability” and relies on Gaither, 94 Md.App. at 584, 618 A.2d 244, as saying that a plaintiff‘s “contention that he could have been reassigned to another position was nothing more than an effort to confuse the employer‘s duty to accommodate with the employee‘s burden of proving that he could perform the essential duties of the job.” Gaither, however, was a 1993 case decided before COMAR was amended in 2001 to expressly allow reassignment and transfer to a vacant position. 28 Md. Reg. 25, 2192, 2192-93 (Dec. 24, 2001). Moreover, the court in Gaither, like the Fourth Circuit in Myers, cited a pre-1992 Rehabilitation Act decision for this proposition. Gaither, 94 Md.App. at 584 (citing Jasany v. U.S. Postal Serv., 755 F.2d 1244, 1251 (6th Cir.1985)).
The “qualified individual with a disability” language also appears in
Adkins maintains that PRMC did not conduct an individualized assessment. In her deposition, Adkins testified that PRMC advised that she should apply for vacant positions, but did not help her in identifying any specific position.16 Additionally, Adkins attested in her affidavit that she recalled speaking to a PRMC recruiter about the Core Tech position, but did “not recall [the recruiter] bringing up any other jobs” that she could do. PRMC argues that Adkins failed to assist it in conducting an individualized assessment and “is solely responsible for the breakdown in communication.” Adkins spoke with a PRMC recruiter about her application for the OR Core Tech position in November 2011, but PRMC highlights that Adkins did not return the recruiter‘s second call to discuss what positions she might be able to perform. PRMC also points out that Adkins, after sending an email to Scott Phillips, director of the Materials Management Department, asking whether she could be considered for an inventory control coordinator position, failed to respond to his reply email querying when she would “have a full release without restrictions.” Review of the exact terms of that correspondence reveals the fallacy in PRMC‘s argument:
Adkins: Hi Scott, I was informed that there is now an open position for Inventory Control [Coordinator] in the Cath Lab. With my prior position in the Cath Lab as the [inventory control] assistant I was wondering if I would be considered for the position. I am still released under Doctors orders under sedentary work but [from] prior
knowledge of the job I know that the job is mostly sedentary and I do have the experience and know how for the position[.]
Phillips: Hi Tracey, I spoke to Mitzi [Sara Scott, former director of human resources at PRMC] about your interest in the [Inventory Control Coordinator] position and we would need to have a full release from your doctor before you would be able to apply for a position. Do you have an idea as to when you will have a full release without restrictions?
(Emphasis added.)
Adkins testified in her deposition that she did not respond to Phillips‘s email inquiring about when she would have a “full release without restrictions” because she did not know the answer. Based on Phillips‘s email, a jury could reasonably find that PRMC required Adkins to be fully healed before it would consider her for the Inventory Control Coordinator position, a mandate fully at odds with the requirements of Maryland law to perform an individualized assessment to determine whether she could perform the essential functions of the position with or without reasonable accommodation.
As PRMC asserts in its brief, the hospital “never concluded that Ms. Adkins was disabled.” When asked at his deposition whether he ever considered that Adkins had a disability which required an accommodation, Bunk replied that he “never considered she had a disability.” Similarly, Phillips testified
Identification of a Reasonable Accommodation
An employer‘s failure to engage in the interactive process to formulate an effective accommodation is not a per se violation of the ADA. Sparrow v. D.C. Office of Human Rights, 74 A.3d 698, 705 (D.C.2013); Cravens, 214 F.3d at 1021; Taylor, 184 F.3d at 317-18. An employer‘s failure to participate in good faith in the interactive process is not actionable unless the employee can demonstrate that he or she could have been reasonably accommodated. Jacobs, 780 F.3d at 581 (“[A]n employer will not be liable for failure to engage in the interactive process if the employee ultimately fails to demonstrate the existence of a reasonable accommodation that would allow her to perform the essential functions of the position.“) (citing Wilson, 717 F.3d at 347); see McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 100 (2d Cir.2009) (“[E]ach of our sister Circuits to have considered the issue has concluded that failure to engage in an interactive process does not form the basis of an ADA claim in the absence of evidence that accommodation was possible.“); see also Donahue v. Consol. Rail Corp., 224 F.3d 226, 233-34 (3d Cir.2000) (Alito, J.) (“[I]n a failure-to-transfer case [under the Rehabilitation Act], if, after a full opportunity for discovery, the summary judgment record is insufficient to establish the existence of an appropriate position into which the plaintiff could have been transferred, summary judgment must be granted in favor of the defendant-even if it also appears that the defendant failed to engage in good faith in the interactive process.“).17
So we look to see whether there is evidence that Adkins could have been reasonably accommodated. Adkins identifies reassignment to a vacant position under
Essential Functions
Generally, the determination of whether a given function is essential is a factual question for the jury and thus not suitable for resolution by summary judgment. See Hall v. U.S. Postal Serv., 857 F.2d 1073, 1078-79 (6th Cir.1988); see also Skerski v. Time Warner Cable Co., 257 F.3d 273, 283 (3d Cir.2001) (remanding for trial after summary judgment for employer because motions court incorrectly decided that rea-
In Hall, the U.S. Court of Appeals for the Sixth Circuit fleshed out the factual nature of the inquiry while reversing a summary judgment for the defendants:
While legitimate physical qualifications may be essential to the performance of certain jobs, both that determination and the determination of whether accommodation is possible are fact-specific issues. The court is obligated to scrutinize the evidence before determining whether the defendant‘s justifications reflect a well-informed judgment grounded in a careful and open-minded weighing of the risks and alternatives, or whether they are simply conclusory statements that are being used to justify reflexive reactions grounded in ignorance or capitulation to public prejudice.
857 F.2d at 1078-79 (quoting Arline v. Sch. Bd. of Nassau Cnty., 772 F.2d 759, 764-65 (11th Cir.1985) (citations omitted and emphasis added), aff‘d, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987)).
In making their determinations courts have, to a degree, deferred to the employers’ job description:
“[C]onsideration shall be given to the employer‘s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.”
42 U.S.C. § 12111(8) . But this deference is not absolute:The inquiry into whether a particular function is essential initially focuses on whether the employer actually requires employees in the position to perform the functions that the employer asserts are essential....
This does not mean that the issue of essential function will always be for the factfinder. Ruling that a route assistant to a driver salesman selling and delivering cases of beer was a position for which heavy lifting was an essential function, a federal court considered the following factors from an EEOC regulation:
(1) whether the reason the position exists is to perform that function; (2) whether there are a limited number of employees available among whom the performance of that job function can be distributed; and/or (3) whether the function is highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
McCollough v. Atlanta Beverage Co., 929 F.Supp. 1489, 1499-1500 (N.D.Ga.1996) (citing
Inventory Control Coordinator
We start with the Inventory Control Coordinator position and address whether reassignment to this position would be a reasonable accommodation. The parties disagree over how to define the essential functions of this position and whether Adkins could perform these essential functions with or without a reasonable accommodation.
PRMC‘s written job description for the Inventory Control Coordinator position provides:
Responsible for maintaining control of the inventory asset account in the Cardiac Cathorization and Electrophysiology labs. This includes overseeing the daily ordering, receiving, and issuing functions. It also includes completing all adjustments, physical inventories, cycle counts, and par level distributions. Must work closely with finance to maintain integrity between physical and perpetual inventory. Assists where necessary in the ordering of inventory items. Recommends and supports goals and objective[s] that are consistent with the mission statement of Peninsula Regional Medical Center. Delivers exceptional quality and service to all patients and other customers....
Adkins expressed interest in the inventory control coordinator position when she emailed Phillips and McIntyre in January 2012. She stated:
I was informed that there is now an open position for Inventory Control [Coordinator] in the Cath Lab. With my prior position in the Cath Lab as the [inventory control] assistant I was wondering if I would be considered for the position. I am still released under Doctors orders under sedentary work but [from] prior knowledge of the job I know that the job is mostly sedentary and I do have the experience and know how for the position[.]
Adkins testified to her familiarity with the position in her deposition, but noted that the physical requirements were “a lot less than when I was up there.” Nonetheless, she felt she would be able to do the actual job with an accommodation. In her affidavit, Adkins also explained her familiarity with working in Inventory Control from her experience as an assistant in the “Cath Lab” from about 2005 through 2010:
[I] am familiar with the work. I heard about the Inventory Control Coordinator position and on January 17, 2012 sent an email to Scott Phillips, Director of Materials Management and Laura McIntyre, OR Materials Manager (Ex. 19, 22) to be considered for the position. I know I could have performed the work because, having worked there for four years, there is very little heavy lifting. The primary heavy item which needed to be handled by the Inventory Control Coordinator on a regular basis were boxes with Intra Venous (IV) fluid bags, weighing more than 20lbs, which had to be received and stored. I could have easily handled these boxes by opening the boxes and taking out the IV bags individually. Each of the bags weighed less than 5 lbs. There was generally about one hour of walking during the course of a day to the Cath and EP labs to take inventory every day and put the supplies out where they belonged. The supplies that were received were usually brought up by someone else from Central Stores. The
position was mentally demanding because of the need to track inventory and computer input required for the position.
(Emphasis added.)
PRMC, however, maintains that the position is physically demanding. PRMC points to deposition testimony from Sherry Pruitt, a former inventory control coordinator. She testified that the position was physically demanding, that she was on her feet often, and that she did a lot of walking. Sarah Scott, former director of human resources at PRMC, testified in her deposition that Adkins could not fulfill the inventory control coordinator position because of the lifting and walking and that she recollected that the position is physical: “It‘s not sedentary. It‘s not sitting at a desk.” In an affidavit, Scott stated that the position “cannot be performed with the sedentary restrictions that Ms. Adkins had in place” and that “[n]o accommodation could be made permitting Ms. Adkins to perform [the position].” Similarly, Scott Phillips testified in his deposition that Adkins would not be able to satisfy the physical requirements of the position.
Notwithstanding this plethora of evidence from hospital employees about the physical demands of this position, this case is much harder to decide than the beer delivery assistant and grocery store manager cases where physical strength is the sine qua non of the job. As the Court of Special Appeals aptly explained:
We have explained that the employee “need not be able to perform all the duties of the job at issue-rather, he must only be able to perform the essential duties of the job.” There is no doubt that the inventory control coordinator position entails some physical tasks, but neither the job description nor the deposition testimony conclusively establish that the walking and lifting requirements are “essential” to the functionality of the position, such that judgment should be entered as a matter of law instead of submitted to a jury to fulfill its fact-finding endeavor. The job description provides that 1/3 of the time is spent standing and
walking, and less than 1/3 of the time is spent lifting-that the position involves standing/lifting does not necessarily mean, on this record, that those duties are essential.
Adkins, 224 Md.App. at 157, 119 A.3d 146 (citation omitted) (emphasis in original).
Although Phillips stated that the position required one to “walk down to the Central Stores warehouse to pick up their order [of supplies],” Adkins contradicted that in her affidavit-saying that the “supplies that were received were brought up by someone else from Central Stores“-a quintessential dispute of material fact.20 Also, in her affidavit, Adkins stated that the position involved “very little heavy lifting” and that the “primary heavy item which needed to be handled by the Inventory Control Coordinator on a regular basis were boxes with Intra Venous (IV) fluid bags, weighing more than 20 lbs.”21 Adkins explained that she could have been accommodated with this part of the lifting had she been allowed to open the boxes and take out the IV bags individually because each of the bags weighed less than five pounds.
Citing Alexander v. Northland Inn, 321 F.3d 723, 727 (8th Cir.2003), PRMC argues that Adkins‘s subjective belief that she could have fulfilled the essential functions of the job is not dispositive, and found the intermediate appellate court‘s giving credence to Adkins‘s belief “baffling and erroneous.” We are
PRMC would have us ignore Adkins‘s testimony on this point because her previous position in Inventory Control was that of inventory control assistant, not inventory control coordinator. PRMC‘s job summary, education requirements, and physical activity requirements for both positions, however, are identical. Furthermore, in the “Job Description/Performance Evaluation” from when Adkins was an inventory control assistant, the job title is listed as “Inventory Control Coordinator” with the word “coordinator” crossed out and “Asst.” written in its place. We, therefore, reject PRMC‘s intimation that Adkins was unfamiliar with the duties of inventory control coordinator because she did not work in that actual position.22
Finally, PRMC points out that it is undisputed that Adkins simply sent an email asking to be considered for the inventory control coordinator position and never formally applied for the job.23 We agree with the Court of Special
For these reasons, we hold that there were material disputes of fact as to the essential job functions of an Inventory Control Coordinator, and without a determination of those,
Adkins does not fare so well with respect to the other two positions she sought, as discussed below.
Core Technician
Although heavy lifting was at issue in the inventory control coordinator position, it becomes prominent in the core technician job. PRMC‘s written job description for the core technician position provides that 2/3 of the time lifting is spent lifting items up to 24 pounds and that 1/3 of the time is spent lifting items up to 50 pounds. Adkins, nonetheless, questions whether lifting is actually an essential function of the position. A current PRMC core technician testified in her deposition that the job requires extensive lifting and that she handles five to ten, 30 to 50-pound items by herself on average daily. Laura McIntyre, Operations Room Materials Manager and supervisor of the core technicians, also testified that the position required regular lifting, including lifting of items weighing 25 to 30 pounds. Additionally, the written description quantifies the time spent standing and sitting-2/3 standing, 2/3 walking, and under 1/3 of the time sitting-fractions that do not favor Adkins.26
Unlike the inventory control coordinator job, Adkins has no prior experience with the core technician position that would permit her to factually dispute the heavy lifting, standing, and walking required. Nor did she offer as witnesses any prior occupant, supervisor, or expert who could offer material testimony relating to the specifics of this job. Cf. Deane v. Pocono Med. Ctr., 142 F.3d 138, 147-48 (3d Cir.1998) (reversing summary judgment where plaintiff offered vocational expert who, basing his opinion in part on a Department of Labor publication, opined that “patient care, not heavy lifting of
We reach a different conclusion about this job than the inventory control coordinator position because in the latter Adkins was able to draw on her personal knowledge to dispute the extent of walking and carrying, and weight of the items lifted, as well as offer up how she would break down the heavy boxes into less than 5 pound IV bags. Thus, she presented testimony challenging the employer‘s written job description to which we normally defer. See Kalekiristos v. CTF Hotel Mgmt. Corp., 958 F.Supp. 641, 660 (D.D.C.1997), aff‘d, 132 F.3d 1481 (D.C.Cir.1997) (“[C]ourts defer ‘to the employer‘s judgment as to what functions of a job are essential’ “);
Adkins suggests that lifting was a “marginal” part of the core technician job notwithstanding PRMC‘s written job description and testimony from a current core technician and
Adkins nevertheless maintains that she could have performed the essential functions of the core technician position with a reasonable accommodation and proposes that the heavy lifting “could have been waived.” This suggestion, however, hinges on the supposition, already rejected, that heavy lifting is not an essential function of the core technician position. PRMC was under no obligation to “waive” this duty.
In a similar vein, Adkins also suggests that she “could have obtained assistance from other Core Technicians with the
Adkins‘s physical condition precludes her from lifting over 10 pounds, yet the core technician position involves daily lifting of items predominantly weighing more than 10 pounds. In light of the large extent of heavy lifting required for the core technician position, enlisting the aid of coworkers to lift such items exceeds assistance and crosses into a shifting of responsibility. Consequently, we reject this proposed accommodation because it would necessitate a reallocation of the essential functions of the core technician position. See Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir.1995) (“An accommodation that would result in other employees having to worker [sic] harder or longer hours is not required.“).
On remand, Adkins will not be permitted to rely on the position of core technician to establish that she could have been reasonably accommodated.
Patient Service Rep-Medical Group
The Patient Service Rep-Medical Group (“PSR“) position required a minimum of three years of experience in secretarial work and experience with Microsoft Office was preferred. Adkins posits that she had acquired the skills necessary for the PSR position while working as an inventory control assistant and that her experience as an inventory control assistant “clearly translates and fulfills the three years of secretarial experience[] required by the PSR position.” We are not persuaded. In contrast to the three years of
Responsible for maintaining control of the inventory asset account in the Cardiac Cathorization and Electrophysiology labs. This includes overseeing the daily ordering, receiving, and issuing functions. It also includes completing all adjustments, physical inventories, cycle counts, and par level distributions. Must work closely with finance to maintain integrity between physical and perpetual inventory. Assists where necessary in the ordering of inventory items.
Adkins did not testify that she worked as a secretary or possessed the requisite skills. Her argument presumes that the skills of a secretary are the same as those of the inventory control assistant. In the absence of evidence so suggesting, or otherwise generating a dispute of material fact, we disagree with Adkins that her experience as an inventory control assistant or store storekeeper “clearly translates and fulfills the three years of secretarial experience[] required by the PSR position.” Because Adkins is not qualified for the PSR position, this is not a reasonable accommodation and Adkins will not be permitted to rely on it on remand.
Failure to Make a Reasonable Accommodation
The last element a plaintiff must prove to make a prima facie case for a failure to accommodate claim is that the employer failed to make a reasonable accommodation. As with the other three elements of the prima facie case, an employee bears the burden in proving that an employer failed to make a reasonable accommodation. Gaither, 94 Md.App. at 583, 618 A.2d 244. PRMC correctly points out that an employer must only provide a reasonable accommodation and not the accommodation of the employee‘s choice. See Rehling v. City of Chicago, 207 F.3d 1009, 1014 (7th Cir.2000).27 PRMC
Although leave may, in some circumstances constitute a reasonable accommodation for the time period that the employer offers it, providing leave as a temporary accommodation does not permanently relieve an employer of the duty to accommodate. If a reasonable accommodation remains necessary when the employee returns to work, the employer must still provide a reasonable accommodation. See Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir.2000) (asserting that factors to be considered as to whether requests for leave of absence are unreasonable include “where, upon the employee‘s return to work, she would be unqualified“) (citing Tyndall v. Nat‘l Educ. Ctr., Inc., 31 F.3d 209, 213-14 (4th Cir.1994)); see also Kitchen v. Summers Continuous Care Ctr., LLC, 552 F.Supp.2d 589, 597-98 (S.D.W.Va.2008) (granting summary judgment to employer when employee did not offer sufficient evidence that extended medical leave would have enabled her to perform the essential functions of her job).
After visiting her physician on January 12, 2012, before her extended leave was set to expire in February, Adkins informed her supervisors that she was still restricted to “light duty,” and could only perform “[s]edentary work: [l]ifting 10 pounds maximum and occasionally lifting and/or carrying small articles and occasional walking or standing.” Adkins‘s presenting her supervisors with an updated doctor‘s note
Intentional Disability Discrimination
In order to establish a prima facie case of intentional disability discrimination, an employee must show: (1) that he or she had a disability; (2) that notwithstanding the disability, he or she was otherwise qualified for the employment, with or without reasonable accommodation; and (3) that he or she was excluded from employment on the basis of his or her disability.
PRMC claims that it did not terminate Adkins on the basis of her disability, but rather because she exhausted 26 weeks of leave. PRMC proffers that the evidence establishes that her
Our earlier discussion dispels this rather simplistic argument that ignores the employer‘s obligations under FEPA to reasonably accommodate Adkins. In its briefs, PRMC does not dispute that Adkins was disabled, whereas Adkins has offered evidence suggesting she was disabled. Moreover, Adkins has offered circumstantial evidence to support her claim that she was fired because of her disability that PRMC terminated her, knowing she was at the time restricted to light duty, and simultaneously ignored its responsibility to reasonably accommodate her. See Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1017 (7th Cir.2000) (“[U]nreasonable delay in providing an accommodation can provide evidence of discrimination“); Logan v. Matveevskii, 57 F.Supp.3d 234, 271 (S.D.N.Y.2014) (“[C]ourts have held that an unreasonable delay itself [of an accommodation] might be evidence of discriminatory intent“); cf. Burnell, 647 F.3d at 708. Thus, in this context, PRMC‘s conduct underlying Adkins‘s failure to accommodate claim also supports her prima facie claim for intentional disability discrimination because it could provide circumstantial evidence of PRMC‘s intent to discriminate. See Schwertfager v. City of Boynton Beach, 42 F.Supp.2d 1347, 1356 (S.D.Fla.1999) (“A crucial ingredient in all actions alleging discriminatory treatment by an employer based on conduct proscribed by the ADA, is proof of discriminatory motive.“) (citing Int‘l Bhd. of Teamsters v. United States, 431 U.S. 324, 325 n. 5, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). Considering the record in the light most favorable to Adkins, we conclude that a factfinder may infer that she was terminated because of her disability. See also Pullman-Standard, 456 U.S. at 288, 102 S.Ct. 1781 (“Treating issues of intent as factual matters for the trier of fact is commonplace.“); cf. Questar Homes of Avalon, LLC v. Pillar Constr., Inc., 388 Md. 675, 687, 882 A.2d 288 (2005) (“Whether there has been a waiver of a contractual right involves a matter of intent that ordinarily turns on the factual circumstances of each case.“).
On a motion for summary judgment, the moving party bears the burden of demonstrating that no genuine disputes of material fact exist. Mathews, 435 Md. at 598, 80 A.3d 269. All ambiguities are to be resolved and all reasonable inferences drawn in favor of the nonmoving party. Id. Viewing the record in light of this standard, we conclude that there are disputes of material fact with respect to the issues of whether: (1) Adkins was qualified to perform the essential functions of the inventory control coordinator with or without a reasonable accommodation, and (2) whether Adkins was terminated because of her disability. Accordingly, we affirm the Court of Special Appeals’ judgment and remand for further proceedings consistent with this opinion.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY PETITIONER.